“There is no single uniform concept of rule of law” – Interview with Fidesz MEP László Trócsányi

Rule of law can vary from country to country because it is embedded historically, culturally, politically, and philosophically in a national heritage, Fidesz MEP László Trócsányi said. In an interview to Hungary Today, the former Justice Minister talked about the “atmosphere of intolerance” regarding the EU criticism of the rule of law situation in Hungary; why the system of “checks and balances” is “most suitable for countries surrounded by seas,” why it was better for Fidesz and Hungary that the ruling party left the EPP; the planned new right-wing party family; his opinions as a MEP on whether the European Parliament should be abolished in its current form; Huxit; the future of the EU he finds desirable; and when Europe’s soul “will be lost forever.” We sent our questions in email to the Fidesz MEP.

According to several members of the Hungarian government, the concept of the rule of law cannot be defined. As a legal scholar, can you define its meaning?

The rule of law is a theoretical concept of political philosophy and state theory that refers to a complex situation within a sovereign state instead of a single piece of legislation or institution. Even though the concept can be traced back to ancient thinkers like Aristotle, it became widespread in the Western world during the Enlightenment. One common thread running through this concept is that the State and its administration are bound by the law and cannot act arbitrarily. However, as much as it has been explored by theoretical thinkers, it is not an abstract concept nor should it be construed as such.

The sovereign nation state is the level on which the rule of law is realized in concrete ways. Thus it is always embedded in a national heritage historically, culturally, politically, and philosophically. There is no single uniform concept of rule of law,”

instead there are rule of law, Rechtsstaat, Etat de droit and the list goes on. It is always lived out in concrete ways through various political communities and states to give it distinctive shape and meaning. How it is specified in a particular country will depend enormously on the details of that social and judicial system, its structures and traditions, just as we all imagine the real in distinctive ways based on our unique backgrounds. A constitutional court is an integral part of the rule of law in one particular country, while there are states that consider rule of law without having a separate institution for constitutional review.

Therefore, this concept is capable of being reasonably specified in a variety of reasonable but mutually distinct ways reflecting the free self-determination of various people around the world. Furthermore, the process whereby this concept is specified and realized in concrete ways creates unique legal institutions, customs and constitutionalism, and ultimately forges constitutional identity.

Can we define when is that point where a state is not governed by the rule of law, even if it has laws? Can you give examples of countries in the world that are not currently considered to be governed by the rule of law?

At this point, I would quote the famous Gustav Radbruch: “[w]here justice is not even strived for, where equality, which is the core of justice, is renounced in the process of legislation, there a statute is not just ‘erroneous law,’ it is in fact not of a legal nature at all.”

However, beyond the concept of natural law, as I pointed out before,

it would be wrong to judge sovereign states and their political communities by abstract and external concepts of rule of law.”

This would mean an ideological assault on this precious concept. Instead, the rule of law has to be recognized through nation states and has to be driven by political and moral commitments of their respective political communities. A commitment to an abstract ideal is not adequate: a concrete and constant inner struggle to realize the concept is necessary as no other than Martin Luther King Jr. pointed out in the case of the United States: “I have a dream that one day this nation will rise up and live out the true meaning of its creed.” That leaves room for domestic democratic debate without accepting the imperialistic imposition of particular ideological preferences.

Do you think the EU’s criticisms of the rule of law in Hungary are completely unfounded?

History teaches us that an atmosphere of intolerance that attempts to marginalize, censor, or penalize intellectual debate and pluralistic viewpoints never ended well and it is doomed to defeat. Different countries see the European integration from different perspectives.

Because of the horrors of the World Wars, Western European countries are reluctant to place trust in national governments and are more favorable toward the concept of an “ever closer union.” However, the historical experience of the Central and Eastern European countries are quite different. The nation states there were the ultimate protectors of the people of Central Europe from one totalitarian regime after another. Hence, the heritage of their nationhood and their sovereignties, along with their role in the European integration are perceived differently. This is a philosophical debate rooted in the historical experience and a different vision for the future of the European integration that is line with the pluralistic tradition in European politics, but it is nothing to do with the concept of the rule of law.

Under the Fidesz government, former Fidesz politicians or people loyal to Fidesz and Viktor Orbán were elected to lead most of the independent institutions in Hungary, such as the State Audit Office, the Public Prosecutor’s Office, or the Media Authority. Under these circumstances, do you think that the independent operation of these institutions and the system of checks and balances can be guaranteed?

The governmental arrangement and institutional setting of Hungary is regulated by the Fundamental Law. It designates the competences of each major institution, provides for the separation of powers, and guarantees the independence of the judiciary and the Constitutional Court, while the Prosecutor’s Office acts autonomously. According to Article XVI of the 1789 Declaration of the Rights of Man and of the Citizen, without a provision for the separation of powers, no Constitution or constitutionalism can exist. The institutions are functioning and acting within their constitutionally circumscribed competences. Even the recent state-of-emergency that put the constitutional system to the test proves its functionality. The system of “checks and balances” you refer to is part of the English constitutional tradition and was never introduced in continental European countries.

While it is true that under the “checks and balances” system government is perceived as something to be weakened, it is not hard to understand that this tradition is most suitable for countries surrounded by seas.”

With its views, Fidesz found itself in a minority in the EPP, and Viktor Orbán’s attempt to renew the party group has resulted in a split. Hasn’t this significantly damaged the ability of Fidesz and the Hungarian government to assert their interests in Europe?

On the contrary, I am positive that it empowered us since we do not have to make compromises in representing what we think is just and morally right to protect our heritage, the interest of the Hungarian people, and the European way of life. At the same time, the decision did not influence the Hungarian Government to continue to do the same in the European Council.

Fidesz has yet to join any political groups while its delegates work independent of any European party in the EP. In the meantime, the creation of a new European right-wing party organized with the participation of Viktor Orbán seems to be closer and closer on the horizon. Which parties have so far made it clear that they would like to join the establishment of a new party family? How large a group do you think you will have in the European Parliament?

As the European People’s Party has increasingly embraced a leftist vision for Europe and continuously inched closer to the Party of the European Socialist, Christian democratic voters throughout Europe are left behind without true representation. This leaves ample room to forge an alliance that is committed to preserve Europe as a civilization we inherited and for its nations to flourish in an age of global powers.

When can we expect the announcement?

Time will tell.

Will so many right-wing parties be able to work together despite the fact that they often disagree on key issues?

As opposed to the progressives, we do not see intellectual debates as detrimental to cooperation. On the contrary, we think it is essential for a flourishing democracy built on reasons and arguments that are integral to the European civilization.

Not surprisingly, a French, a Danish, and a Hungarian right-wing see Europe through different lenses. Hence the priorities may differ, but we all expect the European integration to empower our nations, make their economies more competitive, and give them proper weight globally.”

We have a clear vision and we are reconciling our different perspectives through dialogue and reason as the pluralistic tradition that European integration requires. This is what democracy is about.

Many government politicians have a very poor opinion of the European Parliament. House Speaker László Kövér has called it the biggest assault on European democracies, Gergely Gulyás, the Minister in charge of the Prime Minister’s Office, has called it a damaging, extremist, and pointless organization, and Viktor Orbán has called it a dead end. As a member of the EP, do you yourself share the same low opinion of the European Parliament as well?

Even though the objective of reducing the democratic deficit in the European integration is laudable, unfortunately, in its current form, the European Parliament is quite far from living up to this expectation.

The European Parliament is not a depositary of the European sovereignty as there is no such sovereignty, nor does a European demos exist. The European Union is not itself a nation since it has not developed a sense of collective identity.”

Nevertheless, the European Parliament is not willing to observe its competences as laid down in the Founding Treaties. Instead of representing national and local communities, it increasingly focuses on ideological questions along with its own institutional expansion while shuttling between Brussels and Strasbourg. It increasingly stifles intellectual dissents and pluralistic viewpoints embedded in European culture. This has created deep mistrust towards this institution, which also contributed to Brexit.

Do you agree that the European Parliament should be abolished in its current form? Instead of elections at the European level, should national parliaments delegate their representatives to it? Why would that make it function more democratically, or at least better, in your opinion?

It is obvious that the European Parliament in its current form is no longer able to fulfill the objectives it was entrusted to carry out. Therefore, the democratic deficit of the decision-making process of the European Union still remains an important challenge.

There are several avenues for potential reform. A model of transnational democracy would not be viable since it does not reflect the plurality of languages, cultures, traditions and histories of the European nations and contradicts the principle of subsidiarity. We should seek institutional reforms that are capable of bringing the European Parliament closer to the people and making it truly representative of them instead of distant ideologies. One way to achieve this goal is to increase the role that national parliaments play in the decision-making process of the EU. Another possible avenue is to create individual constituencies for the European Parliamentary election.

Unless the European Parliament finds a way to establish a closer link to the citizens and communities it is supposed to represent, it runs the risk of becoming further alienated. That of course has a definitive impact on the future of the European integration. Do we want an integration that serves its nations, seeks the interests of their citizens and at the same time is cherished by the people? Or do we want an integration that is out of touch with its nations, constantly tries to indoctrinate their citizens, and unable to respond to global challenges? That is the crossroads we are at now.

Apart from Hungary, Poland is the other country which has the most disputes with the European Commission regarding the rule of law. This has become even more heated following a recent ruling of Poland’s Constitutional Court, which states that Polish law can take precedence over EU law. If countries challenge the principle of EU legal supremacy, couldn’t that lead to the disintegration of the whole Union?

The decision of the Polish Constitutional Court did not declare the national law superior to the EU law, instead, it confirmed the primacy of Polish constitution in the areas where the EU does not have exclusive competence. Furthermore, this decision is part of a long series of cases in various Member States that are a reaction to a conception that the EU institutions do not respect the principle of delegation as it is recognized in the Founding Treaties.

We should not forget that national constitutions of Member States allow the existence of the European Union and the application and primacy of the European law where the EU has competences.

But one crucial role of the constitutional or other high courts of Member States is to be the guardian of their national constitutions, possess constitutional and self-identity and sovereignty, and thus, from this perspective have a right and a duty to examine whether the EU institutions observe the competences set out in the Founding Treaties. This judicial dialogue is a keystone of the EU legal order and, in my view, also a precondition of its precedence of application. So the situation is the opposite of what you suggested in the question: the EU would not exist without this judicial dialogue.

Where do you think it is legitimate to give priority to Community decisions and what should definitely be a national competence? Is it always clearly defined? After all, a law often affects several areas.

The EU law has precedence of application in all those areas where the EU has competence based on the Founding Treaties ratified by the Member States. The institutionalized judicial dialogue between the Court of Justice of the European Union and constitutional and high courts of the Member States serve as the avenue to resolve conflicts in this area.

A year-long series of conferences on the future of the European Union was recently launched, partly to bring the EU closer to the people, which is a recurring goal. Isn’t the problem that the citizens of the Member States lack a European identity, a sense of being part of the European community?

In my view it is not the problem, it is the challenge to understand how a flourishing European cooperation needs to be constructed or nurtured. The Member States never aimed to create a European people with a standalone European identity. Our European identity necessarily forms an integral part of our national identity. It exists besides and not above or instead of our national identities. It supplements but cannot substitute them. Brexit is a clear lesson as to what happens when the European identity clashes with national identity.

National identity is so powerful and so emotional that it creates a mythic conception of how the people in a nation are connected together, and forge a collective political identity that stem from common historical memories that people lived through. In a contest between national and European identity, the latter has no chance.

So the main challenge is to understand that a successful European cooperation needs to be built on the existing European nations instead of the non-existent European demos. Europe has no choice but to include national histories, but this is not necessarily true the other way around.

How would you define Europeanism? What connects a Hungarian, Italian, Dutch, or Romanian in a way that is clear to the average person?

We should not forget that the European Union is not simply an internal market or an international organization. It is founded on a civilization that connects every European nation together regardless of whether it is a Member State of the European Union. The wellspring of its strength is its cultural and historical diversity: you can wake up in the land of Montaigne, then walk a couple of minutes across a bridge and be in the land of Goethe.

The European Union emanates from the happiness of Italians, the discipline of the Germans, the heroism and the sacrifice of the Polish, or the inventiveness of the Hungarians.

We should keep in mind that Europe is to be found in the histories and spirits of the European peoples, the cities, the countryside, and the villages of Europe. But as much as Europe is diverse, it has its common roots in the Greco-Latin heritage with Jewish and Christian traditions. That binds these diverse national cultures and pluralistic traditions together and opened a European space for mutual dialogue, which then forged an exceptional civilization with a unique European way of life that is worth cherishing and protecting. The things that stem from this civilization such as Christianity, family, nation, and freedom make life worth living for us.

What future do you believe is desirable for the European Union?

The Europe Union will only have a future if it knows how to recognize, name, and pass on the intellectual and spiritual roots of the European civilization along with the plurality of cultures that Europe inherited.

Europe is our cradle that provides homeland, it is our school and temple that enrich our culture and gives us faith. Any form of European cooperation can only survive and succeed if it is willing to embrace and rise up to this vision. That is the reason why a strong Europe cannot exist without flourishing European nations. The European integration is neither an ideology, nor an end-goal in itself. While it brings many benefits to their citizens, it started and shall end with its Member States who shall continue to stay the “Masters of the cooperation.” The future of the European integration does not turn on the idea whether we should have more or less Europe. Member States and their citizens alike are much more interested in the advantages of the accession to the EU in terms of their security, economic prosperity, competitiveness, and their daily lives.

The defining question of today is: in what areas and competences can the European integration provide added value for its Member States? It is the European Union who needs to justify the areas where it can reinforce the capabilities of the European nations and thus adjust the balance between centralization and subsidiarity. This fundamental conception would then set the stage for a smart Europe that best serves the interests of their Member States.

You have failed to change the European People’s Party from within, which was followed by Fidesz’s departure. What will happen if the European Union also fails to take the direction you want it to? Departure?

On the contrary: I think Viktor Orbán put it right: “Thirty years ago we thought that Europe was our future. Now we know that we are the future for Europe.”

However, if Europe chose to turn her back on her own civilization and the plurality of its cultures and languages and way of life while leaving the door open to philosophies and systems in which it does not set the rules, the continent might remain in a geographical sense, but its soul will be lost forever.

Photos via László Trócsányi’s Press Office